Font Size: a A A

Law And Practical Reason

Posted on:2003-05-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:H Y GeFull Text:PDF
GTID:1116360065462111Subject:Legal theory
Abstract/Summary:PDF Full Text Request
This dissertation is based on three basic positions, each of which is correlated. The first one is that law is the product of reason. The second is that law comes from practice. The third one is that law is the product of the practical reason. It aims at working out that there is an internal relationship between law and practical reason. Law comes from practical reason and is also one of the compositions of the practical reason. We can construct a reasonable, justifiable speech mechanism of law according to it.The dissertation consists of three parts: introduction, text and conclusion. Part A is law and reason. Part B is law and practical reason. Part C is the reason in the practice of law.The introduction part tries to illustrate a theory that the authority of law accords with that of the speech. The most important feature of law is not its enforcement, but its argumentation. The authority of speech is connected with democracy. Only in democracy can the authority of the speech be established. Whereas, the authority of law should be also built on rational speech. The reason why we need law is that we should construct a rational, arguing mechanism in our social life by means of law. The degree of our social civilization depends on that of the _argumentation of law. The ultimate purpose of legal philosophy is to enhance people's ability of rational thought, make our legal speech more convincing and furnish us with an ability to criticize and reveal all kinds of false law statements.In part A, the author emphasizes that the arguing activities depend on people's reason and the legal argumentation is built on the nature of people's reason. There is a coherent link between law and reason. It is to say law is the product of the reason. The proposition contains two parts. On one hand, law is result of people's intentional activities. People have the power to disclose and understand legal phenomena. On the other hand, legal phenomena include the reasoning structures, which can be apprehended by people. From what we talk above, we can draw a conclusion that traditional legal value of reason has two elementary characters: first, it firmly believes that a logical formal structure lies in the law, that is, law is a system of rules. Each rule has its hierarchical level in the system. Whether the rule is legitimate lies in either objective entities out of the people (according to the natural law school), or the rules in a higher rank which are formulated through people's reasoning ability (according to the legal positivism). Secondly, people can construct a justifiable social order through their logical thinking abilities and formal logic.In part B, the author tries to prove that the key point of the legal reasoning is to illustrate and argue the justification of law. The purpose of law is to lay down a criterion for justifiable actions. Practical reason refers to people's faculty and ability to choose justifiable actions. Probing into the relationship between law and the practical reason is the same as illustrating how legal practitioners apply their reason to the procedure of choosing justifiable actions. Whether an action is justifiable is mainly an ethic problem. Both law and ethic belong to normal science. The basic difference between normal science and empirical science is that the main purpose of empirical science is to explain the reality of the object, while that of normal science is to explain object's justification. Legal justification enclosed by law science doesn't lie in objective entities out of the law, but in the objectivity of the legal practitioners' social relations, that is, the inter-subjectiveobjectivity. However, we couldn't comprehend the objectivity through methods of natural science. Since law is regarded as a practical reason, we must investigate the relationship between law and morality, and not to abuse the methods of natural science in the study of law.In part C, it mainly discusses the practical reason in the legal practice. It emphasizes that on the one hand law and morality s...
Keywords/Search Tags:reason justification, practical reason, law, speech
PDF Full Text Request
Related items